Noncompetition Agreement - Master Graphics Inc. and Cary Rosenthal
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement") is made as of December 16,
1997, by and between MASTER GRAPHICS, INC., a Delaware corporation ("Buyer"),
and CARY ROSENTHAL, a Georgia resident ("Seller").
RECITALS
Concurrently with the execution and delivery of this Agreement, Buyer is
purchasing from Seller outstanding shares (the "Shares") of common stock of
Phoenix Communications, Inc. and King Mailing Services, Inc. (the "Acquired
Companies") pursuant to the terms and conditions of a stock purchase agreement
made as of December 15, 1997, (the "Stock Purchase Agreement"). Contemporaneous
with the purchase of the Shares, the Acquired Companies will be merged into
Premier Graphics, Inc., a Delaware corporation (the "Company"), which is a
wholly owned subsidiary of Buyer. Section 2.4(a)(iv) of the Stock Purchase
Agreement requires that a noncompetition agreement be executed and delivered by
Seller as a condition to the purchase of the Shares by Buyer.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
Capitalized terms not expressly defined in this Agreement shall have the
meanings ascribed to them in the Stock Purchase Agreement.
2. ACKNOWLEDGMENTS BY SELLER
Seller acknowledges that (a) Seller has occupied a position of trust and
confidence with the Acquired Companies prior to the date hereof and has become
familiar with the following, any and all of which constitute confidential
information of the Company, (collectively the "Confidential Information"): (i)
any and all trade secrets concerning the business and affairs of the Company,
product specifications, data, know-how, formulae, compositions, processes,
designs, samples, current and planned manufacturing and distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, and computer software and programs of the
Company and any other information, however documented, of the Company that is a
trade secret; (ii) any and all information concerning the business and affairs
of the Company (which includes historical financial statements, financial
projections and budgets,
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historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, and personnel training and techniques and
materials), however documented; and (iii) any and all notes, analysis,
compilations, studies, summaries, and other material prepared by or for the
Company containing or based, in whole or in part, on any information included in
the foregoing, (b) the business of the Company is national in scope, (c) its
products and services are marketed throughout the United States; (d) the Company
competes with other businesses that are or could be located in any part of the
United States; (e) Buyer has required that Seller make the covenants set forth
in Sections 3 and 4 of this Agreement as a condition to the Buyer's purchase of
the Shares owned by Seller; (f) the provisions of Sections 3 and 4 of this
Agreement are reasonable and necessary to protect and preserve the Acquired
Companies' business, and (g) the Company would be irreparably damaged if Seller
were to breach the covenants set forth in Sections 3 and 4 of this Agreement.
3. CONFIDENTIAL INFORMATION
Seller acknowledges and agrees that all Confidential Information known or
obtained by Seller, whether before or after the date hereof, is the property of
the Company. Therefore, Seller agrees that Seller will not, at any time,
disclose to any unauthorized Persons or use for his own account or for the
benefit of any third party any Confidential Information, whether Seller has such
information in Seller's memory or embodied in writing or other physical form,
without Buyer's written consent, unless and to the extent that the Confidential
Information is or becomes generally known to and available for use by the public
other than as a result of Seller's fault. Seller agrees to deliver to Buyer at
the time of execution of this Agreement, and at any other time Buyer may
request, all documents, memoranda, notes, plans, records, reports, and other
documentation, models, components, devices, or computer software, whether
embodied in a disk or in other form (and all copies of all of the foregoing),
relating to the businesses, operations, or affairs of the Company and any other
Confidential Information that Seller may then possess or have under Seller's
control.
4. NONCOMPETITION
As an inducement for Buyer to enter into the Stock Purchase Agreement and as
additional consideration for the consideration to be paid to Seller under the
Stock Purchase Agreement Seller agrees that:
(a) For a period of seven (7) years after the Closing:
(i) Seller will not, directly or indirectly, engage or invest in, own, manage,
operate, finance, control, or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in any
manner connected with, lend Seller's name or any similar name to, lend Seller's
credit to, or render services or advice to, any business whose products or
activities compete in whole or in part with the products or activities of the
Company sold or engaged in by the Acquired Companies immediately prior to the
Closing, within the State of
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Georgia; provided, however, that Seller may purchase or otherwise acquire up to
(but not more than) five percent of any class of securities of any enterprise
(but without otherwise participating in the activities of such enterprise) if
such securities are listed on any national or regional securities exchange or
have been registered under Section 12(g) of the Securities Exchange Act of 1934.
Seller agrees that this covenant is reasonable with respect to its duration,
geographical area, and scope.
(ii) Seller will not, directly or indirectly, either for himself or any other
Person, (A) induce or attempt to induce any Person known to Seller to be an
employee of the Company to leave the employ of the Company, (B) in any way
interfere with the relationship between the Company and any Person known to
Seller to be an employee of the Company, (C) employ, or otherwise engage as an
employee, independent contractor, or otherwise, any Person known to Seller to be
an employee of the Company, or (D) induce or attempt to induce any Person known
to Seller to be a customer, supplier, licensee, or business relation of the
Company to cease doing business with the Company, or in any way interfere with
the relationship between the Company and any such Person, customer, supplier,
licensee, or business relation of the Company.
(iii) Seller will not, directly or indirectly, either for himself or any other
Person, solicit the business of any Person known to Seller to be a customer of
the Company, whether or not Seller had personal contact with such Person, with
respect to products or activities which compete in whole or in part with the
products or activities of the Company sold or engaged in by the Acquired
Companies immediately prior to Closing;
(b) In the event of a breach by Seller of any covenant set forth in Subsection
4(a) of this Agreement, the term of such covenant will be extended by the period
of the duration of such breach;
(c) Seller will not, at any time during or after the seven (7) year period,
disparage Buyer or the Company, or any of their shareholders, directors,
officers, employees, or agents; and
(d) Seller will, for a period of three (3) years after the Closing, within ten
days after accepting any employment, advise Buyer of the identity of any
employer of Seller. Buyer or the Company may serve notice upon each such
employer that Seller is bound by this Agreement and furnish each such employer
with a copy of this Agreement or relevant portions thereof.
5. REMEDIES
If Seller breaches the covenants set forth in Sections 3 or 4 of this Agreement,
Buyer and the Company will be entitled to the following remedies:
(a) Damages from Seller;
(b) To offset under procedures described in Section 10.7 of the Stock Purchase
Agreement which
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procedures shall apply as though fully set forth herein against any and all
amounts owing to Seller under the Stock Purchase Agreement any and all amounts
which Buyer or the Company claim under Subsection 5(a) of this Agreement; and
(c) In addition to its right to damages and any other rights it may have, to
obtain injunctive or other equitable relief to restrain any breach or threatened
breach or otherwise to specifically enforce the provisions of Sections 3 and 4
of this Agreement, it being agreed that money damages alone would be inadequate
to compensate the Buyer and the Company and would be an inadequate remedy for
such breach.
(d) The rights and remedies of the parties to this Agreement are cumulative and
not alternative.
6. SUCCESSORS AND ASSIGNS
This Agreement will be binding upon Buyer, the Company and Seller and will inure
to the benefit of Buyer and the Company and their affiliates, successors and
assigns and Seller and Seller's assigns, heirs and legal representatives.
7. WAIVER
The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power, or privilege under this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the
other party; (b) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and (c) no notice to or
demand on one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement.
8. GOVERNING LAW
This Agreement will be governed by the laws of the State of Georgia without
regard to conflicts of laws principles.
9. JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or based on any
right arising out of, this Agreement may be brought against any of the parties
in the courts of the State of Georgia, County of DeKalb, or, if it has or can
acquire jurisdiction, in the United States District Court for
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the Northern District of Georgia, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
10. SEVERABILITY
Whenever possible each provision and term of this Agreement will be interpreted
in a manner to be effective and valid but if any provision or term of this
Agreement is held to be prohibited by or invalid, then such provision or term
will be ineffective only to the extent of such prohibition or invalidity,
without invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement. If any
of the covenants set forth in Section 4 of this Agreement are held to be
unreasonable, arbitrary, or against public policy, such covenants will be
considered divisible with respect to scope, time, and geographic area, and in
such lesser scope, time and geographic area, will be effective, binding and
enforceable against Seller.
11. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
12. SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to "Section"
or "Sections" refer to the corresponding Section or Sections of this Agreement
unless otherwise specified. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms.
13. NOTICES
All notices, consents, waivers, and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand or (b) received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the appropriate
addresses set forth below (or to such other addresses as a party may designate
by notice to the other parties):
Seller: Cary Rosenthal
c/o Phoenix Communications, Inc.
5664 New Peachtree Road
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Atlanta, Georgia 30341
with a copy to: Holt Ney Zatcoff & Wasserman, LLP
100 Galleria Parkway, Suite 600
Atlanta, Georgia 30339
Attention: Sanford H. Zatcoff, Esq.
Buyer: Master Graphics, Inc
2500 Lamar Avenue
Memphis, Tennessee 38114
Attention: John P. Miller
with a copy to: Black Bobango & Morgan
530 Oak Court Drive, Suite 345
Memphis, Tennessee 38117
Attention: Michael P. Morgan, Esq.
14. ENTIRE AGREEMENT
This Agreement, the Employment Agreement and the Stock Purchase Agreement
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and supersede all prior written and oral agreements and
understandings between Buyer and Seller with respect to the subject matter of
this Agreement. This Agreement may not be amended except by a written agreement
executed by the party to be charged with the amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.
BUYER: MASTER GRAPHICS, INC.
By:/s/ John P. Miller
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Its: President
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SELLER:
By: /s/ Cary Rosenthal
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Cary Rosenthal